NO. 94-560

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

DONALD WEIBERT,

Plaintiff and Appellant,

v.

BRUCE BOOTHE and DENISE BOOTHE,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

Filed:

For Appellant:

Paul E. Toennis (argued), Oliver, Graves, Toennis &

Gustafson, Billings, Montana

For Respondent:

K. Kent Koolen (argued), Moulton, Bellingham, Longo

& Mather, Billings, Montana

For Amicus:

L. Randall Bishop, Jarussi & Bishop, Billings,

Montana (Montana Trial Lawyers Assn.); Maxon R.

Davis, Cure, Borer & Davis, Great Falls, Montana;

Ward E. Taleff, Alexander, Baucus, Taleff & Paul,

Great Falls, Montana (Montana Defense Trial Lawyers,

Inc.)

Heard: December 12, 1995

Submitted: December 14, 1995

Decided: May 14, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of this Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company.

Appellant, Donald Weibert (Weibert), appeals an order of the

Thirteenth Judicial District Court, Yellowstone County, granting

Respondents', Bruce and Denise Boothe (Boothes), motion for summary

judgment in a negligence action for personal injury.

We affirm.

Appellant raises several issues on appeal, which we restate as

follows:

1. Did the District Court fail to apply the appropriate

standard of review for a summary judgment motion in a negligence

action?

2. Did the District Court err in concluding that Boothes did

not owe Weibert a duty of care as a possessor of land?

3. Did the District Court err by not finding that a genuine

issue of material fact existed as to the Boothes' creation of an

unreasonable risk?

4 . Did the District Court err in granting summary judgment

because there were genuine issues of material fact as to the

proximate cause of Weibert's injury?

Nam
Both parties agree on what happened; the Boothes placed a hay

grapple in the farm yard along with other farm equipment. The

Boothes did not start the fire, nor did they have anything to do

with the injury which occurred when Weibert attempted to stamp out

the flames. In this case, the moving party, the Boothes, had

satisfied their burden and the District Court found the basic facts

of the case to be undisputed.

A cause of action in negligence consists of four elements:

(1) duty; (2) breach of duty; (3) causation; and (4) damages.

Hatch v. Dept. of Highways (19941, 269 Mont. 188, 192, 887 P.2d

729, 732. The plaintiff must produce evidence from which it can be

reasonably inferred that negligent conduct on the part of the

defendant was a cause of the plaintiff's injuries. Krone, 638 P.2d

at 400. In this case, as in Krone - I the plaintiff is not exactly

sure what caused his injury. He alleges that "during the time he

was attempting to stamp out the fire, something happened to his

leg. 1' Weibert has failed to produce evidence from which the

element of causation can be inferred.

After the Boothes satisfied the burden of showing that no

material issues of genuine fact were in dispute, the burden shifted

to Weibert to proffer evidence and raise an issue of material fact.

Krone, 638 P.2d at 401. We conclude that Weibert has failed to

meet this burden, the only ambiguity in this case stems from

Weibert's inability to recall the details of the injury.

Since Weibert was unable to provide either the District Court

or this Court with any material issue of fact in this case, and the

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